[governance] International legal aspects of IG debate

[Jovan Kurbalija]

Here are a few comments on the legal aspects. I hope this will help in 
clarifying some terminological confusion. 
 
FROMKIN: I was attempting to distinguish from entities like the UN which 
have a treaty behind them.  If there is a treaty, which (as you note) there 
is in  the case of the R.C., then that leads neatly and routinely to a HQ 
agreement if the treaty contemplates a secretariat.  Maybe I've become 
overly legalistic, but this seems to me to be a fundamental difference from 
the (current) ICANN case....
 
JOVAN: In the case of the Red Cross, status is not regulated by treaty. It 
is regulated by the Swiss Civil Law and Headquarters Agreement signed 
between Switzerland and the Red Cross. The treaty aspect (Geneva Convention) 
does not regulate the status of the Red Cross. It only provides the policy 
context (implementation of the Geneva Convention). In that sense, the Red 
Cross is sui generis. It does not follow the usual pattern, which you 
correctly indicated –establishing the organisation via an international 
treaty + signing a headquarters agreement in order to regulate relations 
between the organisation and the host country. 
 
 
 
BILL: What precisely is ICANN's status under international law?  
 
JOVAN: ICANN is not an international legal entity. It does not have any 
legal capacity under international public law. The only subjects of 
international public law are nation states and, to some extent, 
international organisations. 
 
 
BILL: Irrespective of what's stated in its bylaws, presumably it has some 
obligations under international private law with respect to contracts etc. 
 
JOVAN: International private law is a frequently used misnomer. One possible 
reason why it was widely adopted is that international private law sounds 
“sexier” than more correct and precise titles, such as “conflict of laws” 
(used in the USA) “Konfliktrecht,” or “droit intersystematique”. It sounds 
more impressive to be a professor of international private law than of 
“conflict of laws.” International private law is not “international.” The 
“international” element is related to its application, used to identify 
applicable jurisdiction and law in legal cases with foreign elements. This 
is stipulated in national legislation not in international treaties (like 
international PUBLIC law). If Adam Peake, representing the Internet 
Governance Caucus (not a legal entity), concludes an agreement with a 
restaurant regarding the hosting of an IG Caucus Gala Dinner, in order to 
celebrate the success of civil society in IG negotiations, with an expensive 
menu, and nobody attends the dinner without prior cancellation, the owner of 
the restaurant could start a legal case for compensation. Such a legal case 
would involve a foreign element (the nationality of Adam Peake). The court 
in France would have to decide which jurisdiction should apply (Japanese or 
French) and after that which substantive law should apply. The rules about 
how the French court should decide about applicable jurisdiction and 
relevant law are part of French national legislation. They are 
“international” private law, which could also be applied to other private 
law cases (property relations, marriage, other transactions, etc.).
 
In the case of ICANN, if there is a court case between ICANN and a foreign 
entity (e.g. national domain name operators), the court where the legal case 
is initiated has to decide about its jurisdiction and applicable law. If 
this is a court in California, it will decide according to the Californian 
conflict of laws (international private law). The court has to decide: a) if 
it can establish jurisdiction; b) if it can establish jurisdiction which law 
should be applied (Californian or foreign). 
 
 
BILL: What about international public law as instanciated in ICT-related 
treaties under, inter alia, ITU/WTO/WIPO/COE, or the international bill of 
human rights for that matter?  Could the USG as signatory to these at least 
nominally be obliged to act to bring ICANN into compliance with, say, a 
ruling of the WTO's dispute settlement system, a petition filed with the 
European Court of Human Rights, etc?  
 
JOVAN: Generally speaking, the US has been using a “monist” approach to 
international law. The international obligations adopted by the USA are 
directly applicable to the internal legal system. This is one of the reasons 
why the USA is sometimes reluctant to sign international agreements. For 
other countries, which belong to the “dualist” school, the link between 
international and national law is less direct (there is the possibility to 
prolong and evade internationally accepted obligations). Specifically, it 
depends on each regime – e.g. the WTO dispute settlement system accepts only 
specific claims. The European Court of Human Rights provides access to 
individuals, but it is restricted to the signatories of the European Human 
Rights Convention. This convention is regional and the USA is not a party to 
it. An important caveat: there are SOME Council of Europe Conventions which 
are accessible to any nation state (including those outside Europe) – such 
as the Cybercrime Convention. 
 
 
BILL: This language went into our statement with not much discussion and 
I'll bet I'm not the only person here who's not entirely clear how these 
things work in relation to an org with ICANN's particular legal/tax status.
 
JOVAN: I agree, it requires more careful consideration. The civil society 
has been building its credibility on providing authoritative and 
knowledgeable input into the debate. We have to be careful to keep this line 
during the next phase when we enter a tricky terrain of legal considerations 
– especially various interplays between national and international legal 
systems.
 As ever, Jovan
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